Supreme Court dismisses appeal where Minister invalidates application due to form alteration and policy refusal.

THE SUPREME COURT

No. 393/2005 JR

No. 395/2005 JR

Fennelly, J.

Macken, J.

Finnegan, J.

BETWEEN

F. GREGG BEMIS

RESPONDENT/RESPONDENT

-AND-

THE MINISTER FOR ARTS, HERITAGE, GAELTACHT AND

THE ISLANDS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

JUDGMENT of MR JUSTICE FENNELLY delivered on the 27th day of March, 2007

1. I agree with the reasoning of Macken J that this appeal should be dismissed and the order of the High Court affirmed.

2. My own reasons can be briefly stated.

3. The Minister deemed the application made by the Respondent to be invalid. His reasons are contained in the first two paragraphs of

the decision letter of 22nd May 2001. Firstly, it is noted that the Respondent had altered “our application form thereby changing the

terms of the application from a non-intrusive approach…” Secondly, it is stated that the investigation proposed was “not appropriate

to a non-intrusive dive licence application.” That is the reason given for the ruling that “we must deem your application invalid…”

4. Although counsel for the Minister necessarily and rightly conceded, at the hearing of the appeal, that the Minister has power under

section 3(5) of the National Monuments (Amendment), 1987, to grant intrusive licences, the letter can only be interpreted either as

meaning that the Minister has no such power or, alternatively, that he has a fixed policy of not doing so. In either event, a refusal

based on such a statement of reasons is clearly invalid for all the reasons so cogently set out in the judgment of Macken J. The

admitted fact that there was no available form of application for an intrusive licence, combined with the criticism of the Respondent

for altering the only available one compounds the matter.

5. Macken J has also dealt comprehensively with the relationship between section 3(5) of the Act of 1987 and section 26 of the

National Monuments Act, 1930. I agree that the question of whether the carrying out of “intrusive” activity pursuant to a licence

granted under the former provision also necessitates the grant of a licence pursuant to the latter provision is a question of fact. The

latter section makes it unlawful to “dig or excavate in or under land” where the purpose is to search for archaeological objects. That

section applies to diggings around wrecks only by virtue of section 11 of the Act of 1987. The intrusive activity which may be

permitted pursuant to the Act of 1987 is by means of a licence to: “tamper with, damage or remove any part of a wreck or any

archaeological object…” I do not think this latter activity constitutes the sort of digging or excavating contemplated by the Act of

1930.

6. Mr Feichín MacDonagh, Senior Counsel, accepted on behalf of the Minister that not all activity requiring a licence pursuant to the

Act of 1987 necessarily requires to be licensed also pursuant to the Act of 1930. He gave the example of the removal of silt as an

activity which would. I can find no fault, where it is appropriate, with a grant of a licence for intrusive activity pursuant to the Act of

1987 containing a condition that an application be made for corresponding permission pursuant to the Act of 1930.

7. I would add, finally, that the Respondent’s property rights must be a relevant consideration, as, indeed, Mr MacDonagh properly

accepted on behalf of the Minister. I also agree with Macken J that the Court should not pronounce on this issue at this stage.